Saturday, July 10, 2010

In Sony BMG Music Entertainment (07cv11446-NG)(D. Mass July 9, 2010), Judge Nancy Gertner has written a 61-page decision that is an intellectual tour-de-force - concluding that a $675,000 statutory damages award against a student named Joel Tenenbaum who illegally downloaded music and then shared the songs on peer-to-peer file sharing services. Judge Gertner's decision is linked below via Scrib'd.

The judge reduced the statutory damages award to $2,250 for each of the thirty infringed works. This was a reduction of 90% from the jury's award of $22,500 per song.

The Tenenbaum case was debated in an IP Colloquium moderated by Prof Doug Lichtman, free CLE and audio here. On this blog I rarely try to handicap the outcome of ongoing copyright cases. All too often the casual observer doesn't have all of the operative facts. But after listening to the excellent debate on the IP Colloquium I disagreed with Doug Lichtman's apparent conclusion that statutory damages clearly wouldn't be held unconstitutional based on Prof. Charlie Nesson's arguments. My post on the Tenenbaum case here.

Both Doug Lichtman and Charlie Nesson, counsel for Tenenbaum hopped on the blog and commented on my post. Check out the debate here. I think that it's the most interesting discussion held on this blog since I started it.

I think that Doug Lichtman ended up being right about the analysis that would be applied to the case, you can see his thinking in his comments to my March 28, 2009 post (I had expressed sympathy for Nesson's arguments that excessive statutory damages were penal in nature).

The RIAA originally wrote a cease and desist letter to Tenenbaum asking for $3500. Tenenbaum mailed them $500. They rejected it. RIAA sued and demanded $12,500. He refused and this litigation ensued.

A key fact that all should know and that escapes many media posts is that the court found that Joel Tenenbaum first lied about his responsibility for file sharing (he tried to blame family members), then he claimed he'd deleted files, which he hadn't. This is a key fact when we look at statutory damages, because wilfullness/innocence is a factor that is taken into account. Courts routinely whack people who lie and who cause property owners to incur hassles and increased damages due to their untruthfulness.

So the basic first lesson to be taken from this and any other case is that if you want to be a martyr for a great cause and to vindicate some great principle through our courts, don't compound any initial error by lying about your actions. Tenenbaum is not a pop hero, he should count his lucky stars and work out a settlement. If Harvard wants another test case, find a fourteen year-old. Tenenbaum should consider quitting school, getting a job and paying off the debt. The Boston Globe interview (video posted below) shows that Tenenbaum shows little inclination to accept any responsibility for his actions, and as attorneys fees mount, his downside keeps getting worse.

Turning to Judge Gartner's decision - it is a landmark work of scholarship in the area of punitive damages and the rules that should apply to copyright. If you care about this area, read it. It also explains the relationship between remittitur and a judge's ability or obligation to address the constitutionality of a statutory damages award. Her decision is groundbreaking, thoughtful, and accords with the thinking of the federal judge in Minnesota who vacated the jury's award in the Jammie Thomas case. My post on that case here.

The case is at a point that the RIAA and Tenenbaum can each claim victory. Charlie Nesson's arguments made during the IP Colloquium were vindicated, although not in the way he envisioned, and he has created law that is sensible, humane and realistic in the field of statutory damages and punitive damages in copyright cases. Doug Lichtman's analytical approach was adopted by the court, although not quite the way he envisioned.

Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014).
Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.

About Me

Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014).
Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.